Insolvency Code (Germany)
|Scope:||Federal Republic of Germany|
|Legal matter:||Private law , procedural law|
|Issued on:||October 5, 1994
( BGBl. I p. 2866 )
|Entry into force on:||January 1, 1999
(Art. 110 EGInsO )
|Last change by:||
Art. 24 G of 23 June 2017
( Federal Law Gazette I p. 1693, 1817 )
|Effective date of the
|January 3, 2018
(Art. 26 G of June 23, 2017)
|Please note the note on the applicable legal version.|
The Insolvency Code (InsO) regulates the insolvency procedure in Germany , a special enforcement procedure which serves to satisfy the creditors of an insolvent ( insolvent ) debtor jointly and evenly ( InsO).
The bankruptcy code came into force on January 1, 1999. In the old federal states it replaced the bankruptcy order of February 10, 1877 ( RGBl. P. 351) and the settlement order of February 26, 1935 (RGBl. I p. 321, ber. P. 356), in the new federal states the general enforcement order of June 6, 1990 ( Journal of Laws of I No. 32 p. 285), which continued to apply as a federal law in the accession area after the Unification Treaty.
The bankruptcy code has two goals: On the one hand, the creditors of a debtor should be equally satisfied. This satisfaction takes place through the realization of the debtor's assets and a regular transfer of his income. At the same time, the debtor is secured the income necessary for his livelihood. After the conclusion of the insolvency proceedings , the proceeds from the sale minus the costs of the proceedings, i.e. H. Costs of the court, the administrator and other costs (tax consultants, liquidation costs, settlement costs) paid to the creditors.
On the other hand, the insolvency procedure should give the honest debtor the opportunity to free himself from his liabilities and after a phase of good conduct (duration up to 6 years from the opening of the procedure) to lead a life free from old debts. Various regulations within the framework of the insolvency regulations give companies the opportunity to start over.
Repayment of amounts already received
Under certain circumstances, the insolvency law allows the debtor to assume the assets of the debtor that existed, for example, three months prior to the date of the first admissible application, not from the debtor's assets at the time of the insolvency application. This is made possible by avoiding bankruptcy . If a legal act (for example a payment to a former creditor) is successfully contested, the insolvency administrator can reverse the legal act against this creditor. This is intended to equate all insolvency creditors and to prevent that in a race of creditors in the context of foreclosure only the first get their money and the subsequent ones get empty. If a debtor has already set aside part of his assets in the run-up to bankruptcy (for example by giving it away to relatives) in order to gain a hidden advantage in this way, the repayment can last for a period of up to ten years before the application is filed, provided that the The debtor acted deliberately (because he knew about the impending bankruptcy or caused it).
Since the insolvency law came into force, natural persons in Germany have for the first time been able to free themselves of liabilities (so-called discharge of residual debts) after going through a regulated procedure ( consumer insolvency procedure or standard insolvency procedure ). The previous legal situation was that the debtor had practically no chance - a life at the attachment limit was inevitable. Now the debtor has the chance to no longer have to pay for the liabilities six years after the opening of the insolvency proceedings. As part of the implementation of EU Directive 2019/1023 (Restructuring Directive), the period, initially until 2025, will be reduced to three years.
Self-administration is a special form . With it, the debtor can still dispose of the bankruptcy estate, but is supervised by a trustee. Since a change in the law in 2012 ( ESUG ), this insolvency procedure has been used more frequently.
Public bankruptcy, national bankruptcy
Public insolvency is expressly excluded by InsO. In the de facto sense of insolvency or over-indebtedness, insolvency is quite possible, but this has so far been prevented by the financial equalization. In Section 12 (1) of the Insolvency Code, the Insolvency Code only excludes insolvency proceedings against the assets of the federal and state governments , so that a state bankruptcy is formally not possible.
Municipalities , social security agencies , professional bodies , broadcasters , etc. cannot be subject to insolvency proceedings either. Due to Section 12 (2) InsO, this is largely excluded by state law. At present, legal persons under public law of the federal government and the states are also incapable of bankruptcy . In contrast, health insurance companies ( SGB V) have been for insolvency since 2010. There were no practical cases until the beginning of 2011, even though the insolvency proceedings could only just barely be averted for some health insurance companies (e.g. City BKK , BKK für Heilberufe ).
- Bruno M. Kübler, Hanns Prütting, Reinhard Bork (eds.): InsO. Comment on the bankruptcy code . Loose-leaf, 5 volumes, RWS Verlag, Cologne 1998–2013. Completely available online
- Marie-Luise Graf-Schlicker (Ed.): InsO. Comment on the bankruptcy code . 3rd edition, RWS Verlag, Cologne 2012.
- Ernst Jaeger (greeting), Wolfram Henckel, Walter Gerhardt (ed.): Insolvency Code (InsO). Big comment . 3 vols., De Gruyter, Berlin 2003–2007.
- Hans-Peter Kirchhof , Hans-Jürgen Lwowski, Rolf Stürner (Eds.): Munich Commentary on the Insolvency Code (InsO) . 2nd edition, 3 volumes, CH Beck, Munich 2007/08.
- Jörg Nerlich, Volker Römermann (Ed.): Insolvency Code (InsO). Comment . CH Beck, Munich 2007.
- Peter Leonhardt, Stefan Smid , Mark Zeuner (Hrsg.): Insolvenzordnung (InsO) . Comment. 3. Edition. Verlag W. Kohlhammer, Stuttgart 2010, ISBN 978-3-17-020787-5
- Gerhart Kreft (Ed.): Insolvency Code (InsO). Comment . 6th edition, CF Müller, Heidelberg 2011, ISBN 978-3-8114-3652-7 .
- Kayser, Thole (Hrsg.): Insolvenzordnung (InsO). Comment . 9th edition, CF Müller, Heidelberg 2018, ISBN 978-3-8114-4716-5 .
- Text of the insolvency regulation in the version of October 17, 2008 ( memento of January 18, 2013 in the Internet Archive ) with court decisions
- Deutscher Anwaltspiegel: Insolvency in self-administration: when does it make sense? , dated March 11, 2015, loaded on February 28, 2018
- Kai von Lewinski : Insolvency under public law and state bankruptcy . Tübingen: Mohr Siebeck 2011, ISBN 978-3-16-150700-7 , pp. 159-190.
- Frankfurter Allgemeine Zeitung v. June 14, 2010, p. 13.